Observations of the legal scene from the Cornhusker State, home of Roscoe Pound and Justice Clarence Thomas' in-laws, and beyond.

Saturday, October 07, 2006

In domestic assault case, Double jeopardy did not bar State's prosecuting the Defendant for accompanying felonies after the defendant plead guilty to lesser included misdemeanorsState v. Humbert, 272 Neb. 428 Filed October 6, 2006. No. S-05-1221. Defendants estranged wife, Mayra Humbert (Mayra), claimed that Defendant stabbed her and tied her up in their former Bellevue home to secure her cell phone. After Humbert returned to the residence, he untied Mayra. She escaped from the residence and was later treated at an Omaha hospital for her injuries. Def told police that he and Mayra had argued on April 27, 2005. In order to scare Mayra, he picked up a "ceremonial type" knife that was on a counter in the residence. Humbert said that as Mayra approached him, she "walked into the knife." Humbert saw blood on Mayra's pants, but he did not ask her if she was hurt. Humbert was charged by complaint in county court with four felonies: first degree false imprisonment, second degree assault (domestic violence), terroristic threats, and use of a weapon to commit a felony. After he was bound over to district court, an information was filed charging Humbert with the same four felony counts and two additional misdemeanors: second degree false imprisonment and third degree assault (domestic violence). the court overruled his plea in bar to continued prosecution for the felonies after the def plead to the misdemeanors. The supreme court affirms. Following Ohio v. Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984). "While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution." Ohio v. Johnson, 467 U.S. at 500.The State is not seeking a subsequent prosecution of Humbert for a greater offense after he had previously been tried for the lesser-included offense. There has been no trial on any of the charges. Humbert has pleaded no contest to the above-described misdemeanors, but he has not been sentenced and he has not been subjected to a trial on the felony charges. Therefore the trial may proceed.